Struggle

Law and Order versus Right and Wrong

One thing I found rather curious about the same-sex marriage debate in San Francisco was that those who opposed same-sex marriage frequently claimed that the SF mayor was breaking the law. Those who support same-sex marriage pointed out that the California constitution (similar to the US Constitution) guarantees equal protection for all citizens (or it residents?).

In short, there appears to be a strong correlation between someone's feelings on same-sex marriage and their layman's interpretation of the law. These things are not the same. Right or wrong have only a passing flirtation with legal and illegal. They're never going to get married.

For example, here in Oregon, due to how poorly worded our computer crime laws are, if an ex-girlfriend tells me never to call her again and I call her a week later to tell her that she left some stuff at my house, I've committed a felony (it's a long story that I've researched thoroughly and I'm sure many of us can come up with equally absurd examples).

Did the Mayor of SF break the law? Whether or not he did has nothing to do with whether or not gay marriage is appropriate, though many people don't seem to be able to understand that there's a distinction here.

Here in Portland, Oregon, we have a slightly different situation. (Actually, we're talking about Multnomah county, but Portland is a name people know better.) Four of our five council members worked very hard to determine what the law was and they went out of their way to ensure that they stayed within the letter of the law -- though possibly not the spirit of it.

The result? There appears to be a strong correlation between someone's feelings on same-sex marriage and their layman's interpretation of the law. Surprise! There are many interesting arguments being thrown around and many of them are valid. However, few people seem to be able to decouple their feelings about gay marriage from an objective view of the law.
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There appears to be a strong correlation between someone's feelings on same-sex marriage and their layman's interpretation of the law. Surprise! ... few people seem to be able to decouple their feelings about gay marriage from an objective view of the law

This is why there needs to be a clear distinction between church and state.

IMHO it is the responsibility of the state to decide what is legal ie. can two people who are the same sex form a legal union, at what age is a fetus deemed viable etc... Churches are welcome to state their moral views on these and may other issue but they should not be allowed to influence the legal process. This gives a good framework for the individual to make decisions they feel fit their own beliefs and also stay within the law. What is happening at the moment is that many morals are becoming split across political lines - Democrat = pro gay unions pro-choice, Republican = anti gay unions pro-life and it's causing people serious issues.
Yes, a clearer separation of church and state would be nice. Unfortunately, there seems to be a trend lately for religious conservatives to argue that, because the words "separation of church and state" are not in the Constitution, no such separation needs to exist. They seem to want to ignore many legal opinions and much of our history :(
Politics! hmph
It's consistently that way with politics. Our elected officials use their personal perspective of issues to interpret the legal limitations and/or allowances. Thus the ever increasing differences between parties. I dont think it's possible to elucidate any law beyond prejudice.

I think this reinforces why it is so extreeeeemely important to vote. Our elected officials are public representatives and they're job is to be the voice of their consituents. Therefore, if we want the laws to be perceived and treated according to our own iewpoint, we had certainly better elect the person who shares our views.
Re: Politics! hmph
In other words, don't vote for a Republican or a Democrat. No matter how much they dissemble and obfuscate and outright lie to cover it up, about 98% of Republicrats and Demmicans won't actually support the policies you might elect them to support.
It's ludicrous, of course. Slavery was once legal -- that doesn't mean it was morally right. Although my mother actually argued that once, telling me, People thought is was okay then, so it was different. My mother, however, was something of an idiot at times.

The Mann Act made transporting a woman across state lines for the purpose of sex illegal. Doesn't mean it made a shitload of sense. And hell, just look at our draconian (and racist) drug laws.

There's a huge difference between morality and legality and I think most people, deep down, really know that. But arguing that gay marriage is illegal is simply a way of coming out against it and not just saying, I believe those disgusting homos are lesser human beings than us morally upright straight people. The contortions that bigots will go through to justify discrimination -- especially the ham-fisted religious allusions -- is truly astounding.
The Mann Act made transporting a woman across state lines for the purpose of sex illegal.

While I agree with what you're saying, I have to make a side comment that I find the name of that law truly hilarious :)
I find the "War on Drugs" to be absurd, dangerous, unethical, and thoroughly disgusting to contemplate. The people that support it are either misguided or . . . well, maybe not "Evil", but you get where I'm going with this, I think.

On the other hand, I've always found the suggestion that drug laws are "racist" to be absurd. Effect is not synonymous with intent and, more to the point, the laws themselves are strictly materialist in nature without regard for race, creed, or color.
A sidenote to an old post.
Slavery was once legal -- that doesn't mean it was morally right.

Yet even today I know people who would disagree and say that their morals do not disagree with slavery.

The divisions in what we believe is right and what we believe is wrong are so distinct, more so presently, that if separation of church and state does not begin to occur (it clearly is not occurring now) we will eventually be electing our leaders based solely on their religion. I'm sure I am not the only person frightened by that concept.

(I hope that the above is taken simply as more thoughts on the subject and not anything against anything already said)
So as I take it, you say that my legal arguments are not grounded in law but in my personal opinion? Perhaps I'm reading your post with a little overreaction, but I disagree with the gist of your point. Even if I have a personal opinion that I'd like to see proven true with a legal argument, it doesn't make my legal argument any less valid. The whole point of the US court system process is to take two sides with a stake in the suit and decide who wins. All cases are going to be coming from a place of opinion/morality/what have you. Yes, everyone's going to say they have law on their side. And to some degree or another, everyone is right. There IS a lot of law on marriage. There is a lot of things open to interpretation (such as Multnomah County's creative reading of the state's definition). The problem is there is a lot of conflicting law. And there are various levels of legal authority; a constitution has more legal weight than a statute; the federal Constitution has more legal weight than a state statute. Personally, I still think I win because my arguments are based in the US Constitution. A lot of people don't think the US Constitution has any relevance to the issue, so that's why they think they can "win" by having a state constitution saying that same sex marriage is wrong.

I don't think anyone is misusing a legal argument based on bias; I think this IS what litigation is. You can't go to court and ask to have a law struck down; you have to have standing, which means a vested interest in the outcome, that you will be harmed by some action taken or not taken. So yeah, whoever takes this to court is going to have a pretty big interest in the outcome. That's why it took so long to have Bowers v. Hardwick overruled; because the ACLU had to find someone who was actually prosecuted. Short of that, it was just people exercising academically. Lawyers are advocates, not scholars :)

What do you imagine an "objective" analysis of the law would look like?
So as I take it, you say that my legal arguments are not grounded in law but in my personal opinion?

No! I'm saying that "few people seem to be able to decouple their feelings about gay marriage from an objective view of the law." (emphasis mine). That "few people" includes myself, I might add. I'm not saying that no one is capable of considering the legal aspects.

Even if I have a personal opinion that I'd like to see proven true with a legal argument, it doesn't make my legal argument any less valid.

I completely agree. Personal feelings regarding a subject do not affect the validity of legal arguments. If that were not the case, Thurgood Marshall may have been legitimately forced to recuse himself on Brown vs. Board of Education. The distinction I am making is that many people seem to be basing their casual legal opinions upon their analysis of same-sex marriages rather than their analysis of the law (I'm talking about water-cooler conversations and not necessarily public advocates who have paid more attention to what's going on.)

A problem that I have struggled with for a long time is whether or not the concept of morality should be in the law. I tend to think that it shouldn't because morality is frequently subjective. What I do think is that the law should be for protecting (and possibly promoting) the welfare and rights of those under its jurisdiction. Thus, question of harm comes into play. If an action causes harm regardless of the moral convictions of an individual, it can be prohibited (assault, robbery, etc.), unless the individual directly experiencing the harm is capable of consenting to the harm (of legal age and mentally competent) and does, in fact, consent. In other words, if S&M is your bag and you're a consenting adult, it's not my business. You can whip me if and only if I am of legal age, of sound mind, and consent to the whipping. Bowers v. Hardwick simply wouldn't be an issue.

Of course, this then begs many questions. What about those who cannot give consent? Can a parent spank a child? If an adult has an IQ of 60, can they give consent? If I choose to do cocaine, there's still evidence that cocaine may be criminogenic. Can it be prohibited on those grounds, or will it still be the resulting 7-11 robbery that is illegal? This still makes for many gray areas in the law, but I think it would go further to protect minority opinions. However, this is a moot point since it's unlikely to happen, so please mentally erase the last two paragraphs :)
Dollars and sense
The long and short of it: The states are not going to permit gay "marraiges." However, they are going to sanction "civil unions" with all the same legal protection as granted to a "marraige" (benefits, etc)

The unions/commitments just cant be called "marraige." (hmm, does that mean a civil union may or may not have a "wedding"?)

So...I'm hearing: "It's all the same, we just have to be nice to the conservative christian folk and not call it a marraige."

Uh...so, it boils down to which word we use?

I am one furious taxpayer.
Re: Dollars and sense
Uh...so, it boils down to which word we use?

Basically, yes that's what it boils down to in this case.

I have no evidence to substantiate any of this other than conversations with a few friends but here goes.

I am willing to bet that if you did a poll asking 'should gay people have the same rights in law as straight people' you would get pretty strong agreement. However, ask 'Should gay relationships have the same prominence as straight relationships within American society' and I suspect your would get much less agreement. Unfortunately the issue of gay unions encompasses both of these angles.

Ignoring the rantings of the Christian Right, whom we should remember are simply a vocal minority, I think that there are many reasonable people who would happily afford the same rights to gay couples as straight ones but for a wide range of reasons (religion, age, upbringing etc...) are not comfortable with overt displays of homosexuality. Of course this opens up the whole question of how changes in society should be championed and that's something I am choosing to stay away from in this particular post. The bottom line is that in almost every area of life, what you call something does have a great impact on how it is perceived.

On a side note, the Religious Right have done a very good job at linking conservative or Christian values with bigotry. They are doing a serious disservice to the millions of Americans who are quietly getting on with their lives and respecting the rights and lifestyles of others whilst choosing not to follow the same path themselves.
I can't pretend I know a lot on that subject but in my mind if two people love each other they should be allowed to marry same sex or not..
The same ol story of the government in the bedroom?I think so!
You cant do Thaaaaat....
Ah, but most churches would, in fact, like to regulate what you can do in your bedroom. (and many do)